Labor unions are conducting rallies in cities across the country in anticipation of a decision by the National Labor Relations Board (NLRB) dealing with the definition of a supervisor. Some union leaders claim the decision could take from 8 million Americans the right to join a union and bargain collectively.
Three court cases collectively known as the Kentucky River cases have forced the NLRB to rework the definition of supervisor. The key case is NLRB v. Kentucky River Community Care, which the U.S. Supreme Court decided on a 5-4 vote in May 2001. The court ruled the NRLB had used a flawed analysis of the supervisory status of six “charge” nurses at a Kentucky hospital. The other cases involved “charge” nurses in a nursing home facility and “lead men” and “loading supervisors” in a manufacturing plant.
Plain Meaning Ignored
The court ruled the NLRB had ignored the plain and simple meaning of the language of the National Labor Relations Act (NLRA) in favor of a definition that included in collective bargaining units people who obviously had supervisory responsibilities. The Act bars supervisors from participating in bargaining units.
Labor groups fear a new definition will broaden the number of workers considered to have supervisory positions. Business groups support a more expansive definition.
The NLRB decision is expected to be announced this fall, though there is no deadline for a ruling.
A decision by the NLRB clarifying the definition of supervisors could have a significant effect in the public sector because more than 36 percent of local, state, and federal employees are union members. In the private sector, barely 8 percent of all employees are union members.
Definition Dates to 1935
When Congress enacted the NLRA in 1935 it excluded “any individual employed as a supervisor” from its coverage. The reasoning, in the context of the labor relations climate of the era, was that supervisors represented management and it would be inconsistent to require management to engage in collective bargaining with supervisors.
The NLRA defines a supervisor as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
The distinction harkens back to an industrial era when there were clear lines of responsibility. Industrial workers, many of whom lacked much in the way of education, did exactly what they were told to do, exactly as they were told to do it. Little or no independent judgment was involved. Supervisors told them what to do, made sure they did it, kept track of how much was done, and enforced company policy.
Changing Rules Muddy Roles
Much has changed in the past 80 years. The confrontational model of relations between unions and management has evolved into a more cooperative model that deals with employees as individuals rather than union members. A higher proportion of jobs require educational attainment and professional certification. The advent of technology has eliminated multiple levels of management. Employees have gained increased responsibility for how their work is done and for supervising the work of others.
Public-Sector Workforce Unionization
National average among all federal, state, and local public employees in 2005: 36.5 percent
State | Percent of Public-Sector Workforce in Unions |
---|---|
New York |
68.9 |
New Jersey |
64.1 |
Rhode Island |
63.6 |
Connecticut |
63.5 |
Massachusetts |
58.3 |
Michigan |
58.0 |
Hawaii |
57.7 |
California |
53.8 |
Minnesota |
52.6 |
Washington |
51.4 |
New Hampshire |
49.9 |
Wisconsin |
49.5 |
Oregon |
48.9 |
Alaska |
48.5 |
Illinois |
48.5 |
Pennsylvania |
48.5 |
Ohio |
46.0 |
Maine |
42.8 |
Vermont |
38.5 |
Delaware |
38.4 |
Iowa |
32.8 |
Maryland |
32.3 |
Alabama |
30.9 |
Montana |
28.6 |
West Virginia |
28.3 |
Indiana |
28.2 |
Nevada |
28.2 |
Nebraska |
26.9 |
Colorado |
23.8 |
Florida |
22.3 |
New Mexico |
21.6 |
Missouri |
21.4 |
District of Columbia |
21.1 |
North Dakota |
20.7 |
South Dakota |
19.9 |
Kentucky |
18.6 |
Arizona |
18.1 |
Tennessee |
17.1 |
Texas |
16.8 |
Utah |
15.7 |
Oklahoma |
15.5 |
Wyoming |
15.3 |
Kansas |
14.8 |
Mississippi |
14.6 |
Idaho |
14.2 |
Louisiana |
14.0 |
Arkansas |
12.9 |
Georgia |
12.1 |
Virginia |
10.4 |
North Carolina |
8.7 |
South Carolina |
7.4 |
Source: “Union Membership and Earnings Data Book (2006 Edition)” |
Hence, a decision by the NLRB bringing its definition of supervisors into compliance with the language of the NLRA could have consequences for employer-employee relations far beyond the scope of the NLRA.
Most public-sector bargaining laws were modeled on the NLRA, and many of them adopt the NLRA’s definition of supervisor virtually word for word and exclude them from coverage. These situations can differ greatly from state to state and even among government units within a state.
In most of the states that have enacted public-sector collective bargaining laws, the statutes are comprehensive, covering all levels of government. In other states, however, separate statutes have been enacted covering municipal employees, public school employees, state employees, etc.
Definition Differs by State
This isn’t without some nuances. The Ohio public-sector bargaining law, for example, uses the NLRA language but then says, “Employees of school districts who are department chairpersons or consulting teachers shall not be deemed supervisors.”
Iowa law uses the NLRA language but then specifies, “All school superintendents, assistant superintendents, principals and assistant principals shall be deemed to be supervisory employees.”
Rather than exclude supervisors from coverage under the NLRA, New York’s Taylor Act excludes “managerial” employees and then puts strict limits on the definition of “managerial” so as to extend coverage of the Taylor Act to employees with supervisory responsibilities who would be excluded in many other states. In 2005 public-sector union density in New York state was the highest in the nation at 68.9 percent, compared to a national average of 36.5 percent.
Other states’ public-sector bargaining laws take a different approach. For example, in Connecticut supervisors aren’t excluded from coverage of the collective bargaining law, but the law provides, “no unit shall include both supervisory and nonsupervisory employees.” This means there must be a unit for supervisors and another for nonsupervisors. Public-sector union density in Connecticut was 63.5 percent in 2005.
Public Safety Supervisors Limited
The question of including supervisors in collective bargaining units is even more complicated in police and fire departments because of the historical development of unionism in those activities. In most public safety departments only the highest officials are not bargaining unit members.
The Ohio law noted above is typical. It provides, “With respect to members of a police or fire department, no person shall be deemed a supervisor except the chief of the department or those individuals who, in the absence of the chief, are authorized to exercise the authority and perform the duties of the chief of the department.”
This often leaves the heads of such departments relatively powerless to exert managerial control.
David Denholm ([email protected]) is president of the Public Service Research Foundation, an independent, nonprofit organization that studies labor unions and union influence on public policy.